SAMARJIT GHOSE Vs. ASWINI KUMAR MITRA

JUDGEMENT

(1.) This is an application on behalf of the respondent in an appeal which had been disposed of by a learned Judge of this Court on 8th January, 1979 by a judgment in the absence of the respondent. It appears that the present application for recalling of the said judgment and for restoration of the appeal to its file for rehearing in accordance with law had been filed on 26th October, 1987. The successful appellant in the said aforesaid appeal having been served has appeared through his learned lawyer and has also affirmed an affidavit-in-opposition. On behalf of the respondent, apart from the affidavit-in-reply, Supplementary affidavit as also Supplementary Affidavit-in-Reply along with an application under Section 5 of the Limitation Act have been filed.

(2.) Appearing in support of the application, Mr. Ganguly has specifically assumed the entire responsibility for his nonappearance on the date the Second Appeal stood disposed of ex parte as also the liability to have any lost which this court may impose, as a condition. On the basis of the averments made in the application for restoration, it appears that for sometime preceding the date of disposal of the appeal Mr. Ganguly was himself suffered, heart attack and was hospitalized, and was having an indifferent health compelling him to rely upon his friends and clerks to keep watch over his cases appearing in the lists of this Hon'ble Court and his attendance in Court was irregular. Mr. Ganguly has further stressed that the client after engaging him remained confident and fully relied on him for the purpose of looking after his case pending in the said Second Appeal. It further appears that Mr. Ganguly had a wrong impression about the residence of his client which though in Calcutta was taken by him to be in Bombay It appears also from the averments made by the respondent petitioner that continuous and constant touches between client and the learned lawyer in the particular case had been lacking and as directed by Mr. Ganguly the Respondent waited for communication from his learned advocate, who informed that the disposal of appeal might take a long time. In such circumstance the appeal came up for hearing on the date as mentioned and was disposed of by being allowed in favour of the appellant and in the absence of Mr. Ganguly. No doubt, from the averments made on behalf of the appellant/opposite party the uncontroverted fact emerges that after the disposal of the appeal, on or about 15th March, 1980, Mr. Ganguly was informed by Mr. Dasgupta, who was acting as the learned advocate for the appellant, about such disposal of the appeal on 8th January, 1979 but possibly that would not be of much relevance as on that basis steps were taken by Mr. Ganguly to ascertain the position of the appeal and on or about 5th May, 1980 he obtained the information, which ultimately proved to be incorrect from the office of this Hon'ble Court that the appeal was pending as per register of this court. It is only when the respondent retired and was informed by the appellant about a decree having been passed in favour of the latter that the respondent came in touch with Mr. Ganguly and only thereafter on inspection of records on 24th June, 1987 the fact of disposal of the appeal in the absence of Mr. Ganguly had been discovered. On the averments made on behalf of the applicant/respondent a certified copy of the judgment passed by the learned single Judge of this Court was applied for and was awaited but since there was no prospect of getting the judgment before the ensuing long vacation he was advised to prefer instant application for restoration of the appeal.

(3.) Mr. Dasgupta, appearing on behalf of the successful appellant, has very strenuously contended that this is a case where the restoration ought not to be allowed as the time gap in between the disposal of the appeal on 8th January, 1979 and presentation of the instant application for restoration on 26th October, 1987 is considerable enough to disentitle the respondents to such restoration which if allowed would cause immense prejudice to the appellant, who was in enjoyment of the ex parte decree for such along period. Mr. Dasgupta has, secondly, contended that even accepting the correctness of the statements made on behalf of the respondent/applicant that due to no fault on his part but due to lack of diligence on the part of his learned advocate the appeal was disposed of ex parte; the application deserves dismissal in limine in view of the specific provisions of Article 123 of the Limitation Act as also Order 41 Rule 22 of the Code of Civil Procedure. Mr. Dasgupta has further emphasised the failure of the respondent to take recourse to alternative procedure, namely, by moving the higher form against the ex parte judgment and decree. According to Mr. Dasgupta the first part of Article 123 of the Limitation Act would apply in the instant case as there is no dispute that notice of the appeal had- been served on the respondents obviating the application of the second part of the said Article where knowledge of the applicant could have come to his rescue. Instead of 30 days a period of 7 years has expired.